News & Press: Member Update

March 2017 Legislative Update

Thursday, March 2, 2017  
Posted by: Michael Hancock
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Member Update

March 1, 2017



Legislative Update


With House committees appointed and the bill filing deadline approaching, the pace of activity in the 85th Legislature picked up this month. Among the significant committee assignments, Rep. John Zerwas was named chair of the House Appropriations Committee, Rep. Joe Pickett was shifted from the chairmanship of the Transportation Committee to the chairmanship of the Environmental Regulation Committee, Rep. Geanie Morrison of Victoria was named chair of the Transportation Committee, Rep. John Kuempel was named chair of the Licensing and Administrative Procedures Committee, and Rep. Lyle Larson was named chair of the Natural Resources Committee. Other new activity included:


PUBLIC INFORMATION ISSUES: ACEC Texas submitted testimony to the Senate Business and Commerce Committee yesterday in opposition to Senate Bill 407 by Sen. Kirk Watson. SB 407 would reverse the Texas Supreme Court's Boeing decision and subject all information in a bid or proposal to public disclosure once a contract has been executed.


This expansive requirement for disclosure was the Attorney General's interpretation of the Public Information Act up until a couple of years ago. In 2015, the Supreme Court's decision in Boeing gave businesses more ability to protect from disclosure information that, if released, would give an advantage to competitors. ACEC Texas member firms have successfully used this case to prevent disclosure of certain information submitted to TxDOT and other agencies in responses to RFQs. SB 407, if passed, would go back to the old AG interpretation.


ACEC Texas has asked Sen. Watson to consider amending the bill to protect from disclosure "information submitted in response to a request for proposals for professional services that is related to the respondent's approach to the work, organizational structure, staffing, and other related information that would give advantage to a competitor." This language would not protect the final contract, fee, or scope of work, but would protect some of the information submitted in responses to RFQs.


Sen. Watson also has another related bill (SB 408) that would define as a governmental entity certain private entities and nonprofit corporations that receive public funds (for services other than a contract for services). The bill is aimed at economic development and chamber-type groups that receive government funds.)



CONTRACT/LIABILITY/TORT ISSUES: Rep. Mike Schofield has filed HB 2422 which strengthens the certificate of merit law for suits against engineers and architects by requiring specifically that a certificate must establish the filer's familiarity or experience with the area of practice at issue. Currently, the law only requires a similar registration and active practice.


Rep. Kyle Kacal has filed HB 2170, which would provide that a person other than a design professional who provides to another person plans and specifications for a construction project guarantees and warranties the adequacy, accuracy, and sufficiency of the plans. The bill is being pushed by an organization representing subcontractors and is aimed at owners, making them responsible for plans provided to contractors. We are working with Rep. Kacal on this bill, but ACEC Texas has concerns about the bill as written. Although it nominally excludes design professionals, it seems likely that it would lead directly to owners seeking a higher and uninsurable contractual standard of care from designers.



ETHICS/VENDOR-OFFICIAL/CONTROLLING INTEREST REPORTING: Rep. Sarah Davis has filed HB 2473, which revises the statute relating to reporting of conflicts of interests and gifts from vendors to local government officials. The bill seeks to simplify and make more understandable the circumstances of reporting by requiring reporting of entertainment of more than $100 in each calendar quarter. The current law has a rolling, 12-month look-back for reporting and is very confusing.


Two very different bills have been filed to revise the current law under which businesses with government contracts must report the controlling interest in their company and any intermediaries who assisted in obtaining a contract. This law, which was sold in the name of transparency, has created a massive paperwork burden for businesses that arguably obscures transparency; 100,000 forms have been filed to date, many of them clearly erroneous since the law and rules are difficult to understand. Rep. Giovanni Capriglione, who authored the original requirement for this bill in 2015, has filed HB 1295 which makes a bad law worse by adding civil penalties and lowering the threshold for defining controlling interest to 5% ownership. In contrast, Rep. John Kuempel has filed HB 1610, which defines controlling interest as 51% and establishes an annual filing, in lieu of the current requirement to file with every contract or change order. ACEC Texas supports HB 1610 and opposes HB 1295.





- High-Speed Rail/Eminent Domain: A group of mostly rural legislators have filed a number of bills intended to harm the prospects for high-speed rail in Texas by limiting eminent domain, requiring elevation of tracks, defining how damages are assessed in condemnations, and other requirements. Since some of these bills affect all private uses of eminent domain (such as pipelines and utilities), business interests have formed a group called the Coalition for Critical Infrastructure to oppose inappropriate limits on eminent domain that would hurt economic activities. ACEC Texas is supporting this coalition.


- "Buy American": Several bills have been filed that would both expand and limit current requirements for use of domestic iron and steel products in water supply and treatment projects financed by the Water Development Board. ACEC Texas members have expressed some concern that increased requirements will escalate project costs and will be difficult to meet, especially for mechanical/electrical components.


- Brackish Groundwater: Rep. Lyle Larson has filed HB 2377, which is intended to promote the permitting and utilization of brackish groundwater sources.


- Choice of Law: HB 1844 by Rep. Paul Workman/SB 807 by Sen. Brandon Creighton provide that any provision in a construction or engineering contract for a project in Texas that applies the law of another state is voidable.


The deadline for bill filing for the 85th Regular Session is next Friday, March 10, so hundreds of new bills are likely to be filed in the next several days.



Calendar of Events

  • March 26-27: ACEC Texas Annual Meeting
  • May 17-18: ACEC Texas Business Practices Forum (for IT, HR, and Financial Professionals)
  • June 22-24: ACEC Texas Public Affairs Conference

In The News

Go to for current articles on construction, engineering, public works, transportation, politics and more including:

  • Senators will tackle government contract transparency
  • With private funding and no public incentives, how can we oppose the Texas bullet train
  • Collin County politicians push back against toll roads
  • Trump infrastructure spending no sure thing
  • Abilene economic index sees consistent softening
  • Texas builders fear fallout from immigration crackdown on workforce
  • Lampasas: Bond election calls for new jail construction
  • New old infrastructure causing water woes in small Texas towns
  • How DFW could go from a bunch of strong cities to a regional powerhouse
  • Houston public works director to retire

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